The clarion. [volume] (Jackson, Miss.) 1883-1888, 1887-04-06
$81 AssUMPsIT.
ELI LADNIER.

Summons issued July 9, 1885, return
able July Is, 1885, continued till August
8, 1885. Now comes the case to be
heard, parties appearing in person and
by counsel, the court having satisfac-
ton in the premises, it was therefore
ordered and considered by the court
that the plaintiff, CeIestine Ladnier,
recover of and from defendant, Eli
Ladnier, the sum as claimed in the
above case, together with all costs of
this suit, for which let execution issue
this the 18th of August, 1885" The
summons gave notice that Eli Ladnier
was to appear "to answer the demand of
Celestine Ladnier of eighty -one dollars,
it being the amount of promissory note
given the ID day of May, 1885," A
return of "nulta bona" having been
made on an execution issued upon this
judgment, the plaintiff appeared and
made an affidavit (under sec. 1867, Code
of 18S0) that defendant had fraudulent
ly sold and transferred certain personal
property to his brother, Sylvan Ladnier
to avoid the payment of her judgment.
The justice of the peace filed this aft
davlt but disposed of it by endorsing il
s'overruled by court after dismissal OF
case" The plaintiff appealed to the
circuit court. Eli and Sylvan Ladnier
both testified on the trial in that court
and denied any fraud on their part
The evidence was conflicting. Sylvan
Ladnier testified that his brother was
indebted to him in the sum of $1,000,
and sold him the property in question
in part payment of this debt, and that
he was bona tide purchaser for value.
The jury found in favor of the plaintiff,
Celestine Ladnier, and Sylvan Ladnier
appealed.
The court instructed the jury for the
plaintiff as follows:
81. The court instructs the jury that
the only question before them is whether
the defendant sold the property in ques
ton with intent to defraud this plaintiff,
and if they believe from the evidence
that Eli Ladnier sold said property to
Sylvan Ladnier, his brother, to defraud
and defeat the payment of the note
sued on, then they must find the issue
for the plaintiff"
SO. The plaintiff asks the court to
instruct the jury Tat the sale of prop
erty by an insolvent or one in failing
while a suit is pending
against him, is circumstance indicating
a fraudulent intent, on his part, to
defraud his creditors"
a The sale of all the property of
an insolyent debtor at the time and
place, and to one person, is clrcum-
stance indicating the fraudulent inten t
of the debtor, and is to be considered
by the jury as a circumstance to be
by them in celebrating on
their verdict"
C. j., delivered the opinion of
the Court.
The record of the proceedings before
the justice of the peace was sufficient to
show that a valid, though informal,
judgment had been rendered in favor of
the plaintiff. The entry on the docket
shows that the plaintiff sued the defen-
dant in assumpsit for $S1; by the sum-
mons the defendant was informed of the
character of the action and the sum
demanded. He appeared and contested
the claim aud the entry of the judgment
is that it SIS therefore ordered and CON
sidered by the court that plaintiff, Celes-
tine Ladnier recover of and rom the
Eli Ladnier, the sum as
claimed in the above case together with
all costs of suit for which let execution
issue" &c. Looking to the whole record
it is clearly shown what amount was
and instructed to be awarded
to the plaintiff, and under the liberal
rules which must from necessity be
applied to judgments of justices Of the
peace this judgment must be upheld.
S,cain .. Glider, 81 Miss, 667.
Eliot q. Morgan, 8 Harrington Del,
SIG.
The list, Sd and 4th instructions for
the plaintiff are erroneous.
By the first instruction the court told
the jury that the "only" question for its
was whether the defen-
dant had fraudulently transferred the
to the garnishee, and that if il
20 believed the verdict should be for the
The issue thus presented was too mar
row and excluded from the jury all con-
sideration of the presence or absence of
good faith in the purchaser who claimed
to have been purchaser for value with
put any participation in or knowledge
Of the fraud Of the seller if any such
fraud existed IF the transfer had been
one confessedly voluntary, the instruc
ton would have been appropriate and
correct. But if the garnishee was in
fact as he claimed to be bona fde pur-
chaser for value, then he was entitled to
retain the property even though the
intent of the seller may have been to
put it beyond the reach of creditors, and
If he accepted the transfer Ia good faith